In their most recent Daily Journal column, Manatt Appellate Partner Benjamin Shatz and Associate Benjamin Strauss discussed motions for leave to file amicus briefs in the federal courts of appeals, and detailed what to expect if a party withholds consent or even opposes such a motion.
In the article, Shatz and Strauss explained that opponents may rely on a line of Seventh Circuit opinions by then-Chief Judge Richard Posner that disallowed amicus filings based on a restrictive view of amicus briefing. However, the authors noted that Judge Posner’s “restrictive gatekeeping” is not the majority preference, and may even create the perception of viewpoint discrimination or discredit the court’s appearance of impartiality. “The majority approach to amicus contributions appears to follow this rule: allow amicus briefs and leave the rest to the court’s discretion,” they wrote. The authors discussed the benefits and disadvantages of both approaches, and concluded that whether the Court imposes a permissive or restrictive view, motions for leave should still satisfy the requirements of Federal Rule of Appellate Procedure 29 and walk the fine line of not repeating the arguments raised in the parties’ briefs, yet also not straying so far from those arguments as to drift into irrelevancy.
Daily Journal subscribers can read the full article here.